Another showdown looms on Monday between Old Mutual and Peter Moyo, as to whether he can resume his duties as the insurer’s reinstated CEO.
Old Mutual said on Friday evening that Moyo will not be returning to work despite the Johannesburg high court dismissing the insurer’s application for a declaratory order that seeks to prevent him from getting his job back.
In a statement, the insurer said Moyo has not challenged the contractual validity of his second firing on August 21 – thus he “will not be returning to work in the interim.”
Meanwhile, before the insurer issued its statement, Moyo’s lawyer Eric Mabuza said: “you’ll find us at Old Mutual on Monday.”
On Friday, Judge Brian Mashile dismissed Old Mutual’s application for a declaratory order – under section 18 (1) of the Superior Courts Act – regarding whether Moyo could return to work, until the conclusion of an appeal against a July 30 judgment that temporarily reinstated him as the insurer’s CEO.
Old Mutual argued that its appeal application against the judgment immediately suspends its implementation and until this process is completed, Moyo was not allowed to return to work. In the same court proceedings on Friday, Mashile granted Old Mutual leave to appeal the July 30 judgment. Old Mutual said it will release a statement later on Friday in response to the court’s decision.
The dismissal of Old Mutual’s declaratory order application “in its entirety” on Friday means that Moyo’s reinstatement has been upheld, pending the conclusion of an appeal process. In other words, it’s another victory for Moyo, who has been involved in a nasty punch up with Old Mutual for nearly three months to get his job back.
Moyo was initially suspended on May 23, hours before the insurer’s AGM, due to “a material breakdown in the relationship of trust and confidence”.
Old Mutual subsequently fired Moyo on June 18, accusing him of wrongfully pocketing dividends worth R30 million linked to NMT Capital, an investment holding company he co-founded, and in which Old Mutual holds a 20% stake.
In his 16-page judgment, which also ordered Old Mutual to pay costs related to the declaratory order application, Mashile said the insurer has not satisfied the “heavy onus” to establish that it “will suffer any irreparable harm” by reinstating Moyo.
To justify the declaratory order application, Old Mutual was meant to demonstrate – under section 18 (1) or (2) of the Superior Courts Act – three things: exceptional circumstances, that it would suffer irreparable harm if the order is not granted and that Moyo would not suffer irreparable harm if the order was granted.
In addition to the request for a declaratory order, Old Mutual also wanted the high court to declare that the July 30 judgment is final. Mashile ruled that the judgment is interim and that the court is “not at liberty” to declare it final.
Old Mutual argued that if Moyo is reinstated, it would cause harm to the insurer because its relationship with him has broken down. Moyo argued that Old Mutual will not suffer any harm.
About Moyo’s reinstatement, Mashile said: “…Granting reinstatement has become so common that one can hardly regard it as exceptional as the applicants (Old Mutual) would have this court believe. If anything, the applicants (Old Mutual) seem to be going all out to demonstrate that a relationship with the first respondent (Moyo) is impossible.”
Mashile also found Old Mutual has caused irreparable harm to Moyo. “Other than the humiliation of being ejected from his office, the irreparable harm is plain for every day that he spends at home without work regardless of whether he has been paid for sitting or not. That harm persists until such time that the interim reinstatement is executed and operationalised,” he said.
He also affirmed that Old Mutual is “permanently” interdicted from appointing another CEO “no matter the outcome of Part B” of Moyo’s application. In Part B, Moyo is seeking to declare Old Mutual’s 14-member board, including Chair Trevor Manuel, to be delinquent directors under the Companies Act. The application might be heard in October.
Moyo still wants to have the conduct of Old Mutual’s board declared to be in contempt of court for “failing” to comply with the July 30 judgment.